Court File and Parties
Court File No.: D57724/12 Date: 2015-02-02
Ontario Court of Justice
Between:
F.D.M. APPLICANT
- and -
K.O.W. RESPONDENT
Counsel:
- Glenda Perry, for the Applicant
- Corinne Long, for the Respondent
Heard: January 30, 2015
Justice: S.B. Sherr
Reasons for Decision
Part One – Introduction
1The applicant (the mother) has brought a motion to dismiss the motion of the respondent (the father) to change the July 23, 2013 order of Justice Geraldine Waldman (the final order). The final order provides that the mother has sole custody of the parties' three children, ages 9, 7 and 6 (the children). It also provides that the father shall have no access to the children and restrains him from contacting or communicating directly or indirectly with the mother and the children.
2The father, in his motion to change, asks the court for liberal and generous access to the children, starting with supervised access. He asks to be able to remove the children from Canada for vacation purposes. He also asks to terminate the restraining order. He submits that he has demonstrated a material change in circumstances affecting the best interests of the children.
3The mother, in her motion to dismiss the father's motion to change, submits that the father has not demonstrated a material change in circumstances affecting the best interests of the children. In the alternative, she asked the court to strike the father's motion to change, due to his failure to comply with court disclosure and costs orders. She also asked the court for an order requiring the father to obtain its leave prior to commencing any further motion to change, and as a precondition to obtaining such leave, to fully comply with all prior disclosure and costs orders of the court.
Part Two – Background Facts
4The mother is 28 years old. She was born in Somalia.
5The father is 31 years old. He was also born in Somalia. He came to Canada when he was 10 years old. He became a Canadian citizen in 1996. In 2002, the father moved to and lived in Dubai. He went to visit his family in Somalia in 2005 and met the mother.
6The parties were married in 2005. The father came to Canada in 2007 and lived here. The mother and the children lived in Somalia, Ethiopia and India from 2005 to 2012.
7The father sponsored the mother and children to come to Canada. They arrived in Canada on May 30, 2012.
8The parties only resided together for short periods of time before the mother and the children arrived in Canada. The father would travel abroad to spend time with his family.
9The parties separated in August of 2012, when the mother took the children to a shelter for abused women.
10The father was criminally charged at this time with assault, utter death threats and mischief to property in relation to making threats to the mother and a third person assisting the mother.
11The mother issued an application for custody, no access and a restraining order on October 24, 2012. She set out a long history of severe physical abuse against her and the children by the father. She also set out that the father had significant mental health and substance abuse issues.
12On December 14, 2012, Justice Waldman made a temporary without prejudice order that the children reside with the mother, and that neither party remove the children from Ontario.
13On January 11, 2013, Justice Waldman granted the mother temporary custody of the children. She granted an extension of time to the father to file his Answer/Claim.
14The father filed an Answer/Claim on January 31, 2013, denying all of the mother's allegations. The father sought custody of the children, and in the alternative, liberal and generous access.
15The father brought a motion for temporary access, returnable on May 17, 2013. He did not attend on the motion and his counsel at that time asked for and was granted permission to be removed as his solicitor of record. Justice Waldman dismissed the father's motion for temporary access. She also ordered the father to provide disclosure, including complete details of his medical and police records.
16On July 23, 2013, Justice Waldman struck the father's pleadings after the father failed to attend again at court, or to provide any of the disclosure that she had ordered on May 17, 2013. She proceeded to make the final order.
17The father did not appeal this order. He did not move to set it aside.
18On December 9, 2013, the criminal charges against the father were withdrawn upon his entering into a Recognizance to Keep the Peace for one year, pursuant to Section 810 of the Criminal Code.
19The father issued this motion to change on January 8, 2014.
20At a case conference held on April 3, 2014, the mother was given permission by Justice Waldman to bring this motion to dismiss the father's motion to change.
21The mother's motion to dismiss the motion to change was adjourned several times, usually at the request of the father. On August 19, 2014, the father was ordered to pay the mother's costs of $2,500, payable within 90 days. On November 14, 2014, the father was ordered to pay the mother's costs of $1,800, with the method of payment to be determined on the return of the motion. The father was also ordered again to provide complete disclosure of his medical and police records.
22The father has not paid any amount towards the costs orders. He has also never paid anything to the mother towards the support of the children.
Part Three – Motion to Change the No Access Order
3.1 Legal Considerations
23Section 29 of the Children's Law Reform Act sets out the test to change a custody or access order. It reads as follows:
Order varying an order
- A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
24The Supreme Court of Canada decision in Gordon v. Goertz, 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct:
a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
25In Gordon (Paragraphs 10-16), the court discusses what evidence is required for the moving party to meet the threshold condition of establishing a material change in circumstances. The court says that the question is whether the previous order might have been different had the circumstances that now existed prevailed earlier. On an application to vary a custody order, the judge must be satisfied:
a) Of a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;
b) Which materially affects the child; and
c) Which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
26The onus of establishing the material change is on the person seeking the change. If the material change cannot be established, the motion is to be dismissed. The change must have altered the child's needs or the ability of the parent to meet those needs. The last order is presumed to be correct. See: Wiegers v. Gray, 2008 SKCA 7 .
27Gordon states that the requirement of a material change in the situation of a child means that an application to vary custody cannot serve as an indirect route of an appeal from the original custody order (par. 11).
28There is a strong presumption that findings of fact made at the hearing of an original application, even if made on a default basis, will not be disturbed on a motion to change. This was discussed in Trang v. Trang, 2013 ONSC 1980, where on a motion to change, a payor was trying to change income imputed to him at the original hearing. The court comments in paragraphs 59 and 60:
If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.
But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct – and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court.
29It is normally in the interests of children to continue and to encourage their relationships with both parents following the separation of their parents. The ultimate goal is to establish, maintain and promote relationships which are of significance and support for a child. See: Young v. Young, [1993] 4 S.C.R. 3. Children generally benefit from contact with both parents. See: Gordon v. Goertz, at paragraph 24.
30A parent does not have an absolute right of access. Access is only to be ordered in circumstances where there will be a benefit to the child. It is not sufficient to show that access will not harm the child; that is far too low a threshold. However, refusing access should only be ordered in extreme circumstances. See: Worthington v. Worthington.
Part Four – Procedure
31The father submitted that the material filed on this motion demonstrated that there had been a material change in circumstances affecting the best interests of the children and that the court should proceed to the second stage of the analysis – to determine what order is in the children's best interests.
32The mother's position is that the father has not met the first part of the test, based on the evidence filed, and his motion to change should be dismissed. In submissions (but not in her notice of motion) she framed this as being a motion for summary judgment.
33Neither party submitted that oral evidence was necessary to determine the threshold issue as to whether there had been a material change in circumstances affecting the best interests of the children.
34There is not an automatic entitlement to a trial on a motion to change. In I. v. W., 2011 ONSC 2021 , Justice George Czutrin upheld on appeal a decision by Justice Geraldine Waldman to dismiss a motion to change without a trial and quoted paragraph 31 of her reasons for decision where she wrote:
[31] I am satisfied, having reviewed the evidence, that a trial of the issue of father's access to the child is not required. There is no issue of credibility that needs to be resolved through viva voce evidence. The court does not require examination and cross-examination to allow for a full exploring of the evidence and issues before the court. The affidavit materials filed, particularly by father, are extensive and he has carefully documented his concerns. The evidence supported each party's position and each party had an opportunity to make submissions to the court and to explain his or her position fully. Subrule 15(26) of the Family Law Rules, O. Reg. 114/99, as amended, allows the court to give directions including directions for a trial if "the court feels that the motion cannot be adequately dealt with because of the material filed, because of the matters in dispute or for any other reason." Under rule 15, a motion to change a final order shall be dealt with on the basis of the documentary evidence filed, unless the court is of the opinion that it cannot properly be dealt with in this fashion. See M. v. O., 2006 ONCJ 176 . The onus is on the applicant father to show that a trial is needed. In this case, while this is a motion to change, the issue to be determined, father's access, is actually the same issue that has been central to this case from virtually the beginning. Given this history, along with the evidence filed and submissions made, I am satisfied that a trial is not required.
35After reviewing the evidence filed, and hearing the submissions of the parties, the court finds that it is unnecessary to require examination and cross-examination of the parties to fully appreciate the evidence and issues before it. It is also unnecessary to consider summary judgment principles, as the threshold issue of whether there has been a material change in circumstances affecting the best interests of the children can be determined on the basis of the material filed and submissions. If the court finds that the father has met the first part of the test, the case will continue with an exploration of the best interests of the children. If not, the motion to change will be dismissed.
Part Five – Evidence Supporting the Final Order of Justice Waldman
36Justice Waldman relied on affidavits from the mother in making the final order. These affidavits described the father as a person suffering from significant mental illness and substance abuse and particularized how he was physically and emotionally abusing her and the children.
37The mother's evidence was very detailed and included (this is only a summary) the following:
a) The father began beating the children when they each started crawling.
b) The father did not like to hear the children scream or run around and would beat them or throw them. Once, when the parties resided in India, the father dragged one child on the ground by her legs.
c) The father caused serious property damage when he was angry. This included breaking windows, doors and walls, throwing bottles, kitchen implements and computers, and ripping toilets from the wall. The mother described one incident where the father began yelling and screaming and threw the family's television and clothing out the window.
d) The father frequently assaulted the mother. She described instances where the father smashed her forehead on the ground, pulled her hair, punched her repeatedly, spat on her and scratched her face. He would often threaten to kill her, one time breaking a glass and holding it to her throat. The mother said that on one occasion after she arrived in Canada, the father strangled her. This precipitated the final separation and the criminal charges.
e) The father assaulted her when she was pregnant.
f) The father assaulted her in the presence of the children.
g) The father had a history of forcing her from the home without the children.
h) The father regularly used drugs and alcohol in front of the children. The substance use would escalate his anger.
i) The father had been arrested in Ethiopia and India for his violent behaviour.
38The father, in the initial court proceeding, did not address the specific allegations of the mother, merely making a blanket denial of her allegations. He claimed that he was a loving and involved father. He did not provide any of the medical or police records ordered by Justice Waldman.
Part Six – Father's Evidence
39The father has filed three affidavits in support of his motion to change. In his first affidavit, sworn on January 8, 2014, the father denies all of the mother's allegations of abuse. He sets out how the criminal charges were withdrawn upon his entering into a Recognizance to Keep the Peace. He submits that this is proof that the mother's allegations were false and he should never have been denied access to the children. This affidavit does not specifically address the multiple and specific abuse allegations made by the mother. None of the disclosure of police or medical records previously ordered by Justice Waldman was produced at this time.
40The father's second affidavit is sworn on August 11, 2014. In this affidavit the father states that:
a) All of the evidence relied upon by Justice Waldman in making the final order was false. He has never abused the mother or the children.
b) He failed to attend the family court proceedings because he was on criminal release terms and had no position to put forward allowing him either custody of or access to the children.
c) He has no mental health issues, no criminal history.
d) The total treatment that he received in regard to mental health issues occurred on one visit to a doctor. He was depressed because of the difficulties that he was having with the mother. The doctor did not prescribe any medication or any treatment and his problem was resolved in the one visit.
e) He has never been charged with any crimes in Canada other than the charges laid by the mother.
f) His total use of alcohol and drugs is limited to the occasional consumption of alcohol and smoking cigarettes. The allegations that he uses drugs or alcohol to excess are totally false.
g) He was never mentally ill in Ethiopia.
h) The children are not afraid of him.
41The father's third affidavit is sworn on January 14, 2015. This affidavit was filed after he finally produced many of his medical and police records that had been ordered. Those records are attached to his affidavit. This affidavit provides more details of his mental health history and involvement with the criminal justice system. These records clearly establish that the statements made by the father in his previous affidavits about his mental health history and treatment, involvement with the criminal justice system and substance use were almost completely false.
42The father continued to deny in this affidavit using illegal drugs and claimed that he only consumes alcohol occasionally for social reasons – that he does not consume alcohol to excess. He said that he only abused alcohol for a short while after the parties separated. He continued to maintain that he never harmed the children and posed no risk to them. He stated that he has not suffered a mental health episode since November of 2012.
43In this affidavit, the father provided evidence that:
a) In 2013 he was regularly seen by a psychiatrist as part of his involvement with the Mental Health Court, arising from charges that he had chased his sister with a knife.
b) He completed an anger management program on November 23, 2013 (a certificate was attached).
44The father produced a letter from a psychiatrist dated February 11, 2013. This letter states that the father reported to the psychiatrist that:
a) He was falsely accused by his wife of domestic assault and of being mentally ill and a danger to his children.
b) In 2008 he was diagnosed with Bipolar Disorder. Since then he had taken Lithium intermittently.
c) He was briefly hospitalized in Toronto in 2009 and discharged without a diagnosis.
45The psychiatrist observed that the father appeared to be emotionally intact. He did not see any evidence of psychosis or depression. He wrote:
Even if he did have an episode of bipolar illness four years ago, he seems quite well now and I do not see why, from a psychiatric perspective, he is not allowed to see his children.
46The father claims that the following evidence constitutes a material change in circumstances:
a) He was not convicted of the charges of assaulting the mother that arose at the time of the separation. This proves, he believes, that all of the mother's allegations relied upon by Justice Waldman in making the final order were false.
b) He has successfully completed an anger management program.
c) His mental health is now stable and he poses no risk to the mother or the children.
Part Seven – The Police and Medical Records
47The police and medical records filed on this motion established the following:
a) The father has a significant mental health history.
b) The father becomes angry, violent and belligerent when suffering mental health issues.
c) The father has often been admitted to the hospital due to mental health issues, at times exacerbated by substance abuse.
d) The father has had frequent involvement with the criminal justice system. Much of this involvement is due to violent and erratic behaviour.
e) The father's evidence about his mental health history and involvement with the criminal justice system set out in his first two affidavits filed was, for the most part, false.
48The evidence in these records (which were not made available to Justice Waldman at the initial hearing) only serves to reinforce her findings about the risk that the father posed to the mother and the children at that time. These records also establish that the father falsely reported his mental health history to his psychiatrist in 2013.
49The father's police records filed set out the following:
a) 2007 – Charged with Fail to Attend Court, Careless Use of Firearm – Withdrawn.
b) 2009 – Mental Health Act Apprehension.
c) 2010 (November) – Mental Health Act Apprehension.
d) 2010 (December) – Mental Health Act Apprehension.
e) 2012 – Fail to Comply – Convicted – Time served, plus one day, plus probation.
f) 2013 (June) – Fail to Comply, Mischief – Withdrawn with Peace Bond.
g) 2013 (October) – Uttering Threats, Assault, Possession of a Weapon, Criminal Harassment, Fail to Comply – Withdrawn (these were the charges diverted to the Mental Health Court).
h) 2013 (December) – Assault, Uttering Threats – Withdrawn with Peace Bond (these were the charges relating to the mother).
i) 2014 (March) – Refuse Breath Sample, Impaired Driving – Withdrawn.
j) 2014 (April) – Mental Health Act Apprehension.
50The hospital records filed set out the following evidence of note:
a) In May of 2009 the father was brought to the hospital with an acute psychotic episode with manic features. He was reported as being very argumentative, religiously preoccupied and making bizarre statements, claiming that he was evil and that he had been killed and had come back to life. His speech and thought content were noted as bizarre. He had to be restrained. The father reported that he felt that he could control other people's minds. The record noted that there had been two prior similar episodes of mania and psychosis – that the father had been admitted to psychiatric hospitals in India and Ethiopia. His mother reported that the father did not take any medication. The report indicated a significant family history of mental illness and usage of marijuana by the father from 2002 to 2006. The treating psychiatrist stated that the father is likely dealing with bipolar disorder, perhaps exacerbated by drugs.
b) In June of 2009, the father was brought to the hospital by his mother. She reported that the father had been very agitated, was not making sense, was not taking his medication and was talking about killing somebody. He was admitted to the hospital under a Form 1 pursuant to the Mental Health Act. The psychiatrist noted that the father showed thought blocking and marked evidence of religious, paranoid and sexual delusions. There was some element of grandiosity in him talking about being an NFL Football star. The psychiatrist wrote that the father had no insight into his illness and his judgment was impaired. His mother reported him being violent at home. The diagnosis was possible drug-induced psychosis, schizoaffective schizophrenia or a bipolar disorder. The father was prescribed medication. The father, in his affidavit sworn on January 14, 2015, deposed that he was using marijuana regularly during this time.
c) In August of 2012, the father was admitted to the hospital. The records stated that he has a history of suffering from bipolar disorder. He expressed suicidal ideation at that visit.
d) In October of 2012, the father was brought to the hospital by the police. He was intoxicated. The hospital admitted the father on a Form 1 as he had threatened to cause bodily harm, behaved violently and showed a lack of competence to care for himself. The father reported that he had consumed a half-bottle of vodka. The father reported that he was taking his medication, but blood-work showed that he was non-compliant. The father was very hostile towards hospital staff and was swearing profusely. He was not delusional, but his anger and hostility were reported as being irrational. The father reported that no criminal charges were outstanding against him (this was not the case). The father was reported as being non-delusional and fully oriented on discharge.
e) The November 17, 2012 hospital report stated that the father is well-known to the hospital. He was brought to the hospital by the police after his sister had called them. He was reportedly chasing her around the house wielding a knife and threatening her. He then locked himself in the apartment. The Toronto Emergency Task Force was called and they had to force open the door and remove him. The records indicate that the father has a prior history of threatening behaviours. It was noted that he has a prior history of drinking and using marijuana. The father denied any psychiatric illness among family members (not the case, according to the May 2009 hospital record). The father was given an option of seeing the hospital's addiction specialist.
f) In April of 2013, the father was advised by the treating doctor at the hospital not to drink alcohol. It was noted that he was not taking any medication for his bipolar disorder.
Part Eight – Analysis
51The court finds that the father has established some changes in circumstances. He is no longer facing criminal charges. He completed an Anger Management Program. He completed the Mental Health Court diversion program in 2013 and had those charges withdrawn in favour of a Peace Bond. There have been no hospital admissions relating to his mental health (according to the records filed) since April of 2014. The father deserves credit for this. He also deserves credit for wanting to have a relationship with his children.
52However, the court finds that these changes do not constitute a material change in circumstances that affect the best interests of the children. The risk concerns for the mother and the children in this case are profound. The findings of fact by Justice Waldman established that the children were exposed to a severe degree of physical and emotional abuse by the father. They were exposed, at times, to bizarre and angry behaviour by him. The reliability of the mother's evidence about the father mental illness and violent behaviour has only been reinforced by the recent production of the police and medical records. Yet the father continues to claim that all of her evidence was fabricated. Despite being given multiple opportunities to do otherwise, the father, for the most part, continued to rely on bald denials of these specific allegations. The father did not come close to rebutting the presumption that the findings of fact made by Justice Waldman in making the final order should not be disturbed.
53It is very troubling to this court that in August of 2014 (in his second affidavit), the father was claiming that he had only had one minor mental health admission and minimized his involvement with the criminal justice system. It shows a complete absence of credibility or a dangerous lack of insight into his condition and behaviour (or both). This increases the risk of harm to the mother and the children. It makes it less likely that the father will be able to recognize the triggers to his mental health episodes, mitigate their impact on other persons or be able to meaningfully engage in treatment to reasonably control them. The evidence that the father also falsely reports his history to his psychiatrist not only reduces the reliability of any psychiatric report, but increases the risk that he will not be successfully treated – creating increased risk for the children.
54The evidence establishes that the father can present as oriented and focused for long periods of time. However, due to his illness, he has disturbing and violent episodes. The father provided no evidence that he has recently seen a psychiatrist. He provided no evidence about a course of treatment or medications to mitigate the risk of a relapse in his mental health.
55The father, in his material, showed absolutely no insight about the impact his behaviour has had on the mother and the children, instead resting on blanket denials of any improper behaviour and claiming to have a positive relationship with the children. The father has only been an occasional parental figure in the lives of these children. The evidence indicates that the time he has been involved with them has not been beneficial.
56The court will need to see evidence that the father's mental illness is being properly treated and controlled before it will consider restoring access. It will also need to see the father maintain his mental health stability for a longer period of time. The father's behaviours described in the hospital reports and by the mother had to have been extremely frightening for these children to experience and observe. The parent who was supposed to protect them abused them and their mother. This court will proceed with caution in order not to expose the children to such behaviour again.
57The father cited the case of Wehbe v. Wehbe, [2007] O.J. No. 1053 (SCJ) in support of his position. In that case, the father successfully demonstrated a material change in circumstances affecting the best interests of the children in a motion to change a no access order. However, in Wehbe, the father produced far better evidence of change than the father in this case. The court in Wehbe found that the father had made significant changes in his life. He actively participated in therapeutic treatment, complied with all conditions of his criminal court release and obtained positive reports from a psychiatrist and his probation officer. He had maintained steady employment and had a stable new relationship with a new baby. The Children's Aid Society had determined there were no risk concerns with the new baby. The father's spouse reported that for over two years he had not been abusive in "any way, shape or form".
58Wehbe is a good example to the father as to what evidence is required for the court to find that there has been a material change in circumstances affecting the best interests of the children.
59The father has failed to meet his onus to show that there has been a material change in circumstances affecting the best interests of the children, or to justify making an order terminating the restraining order. The court also finds (in the event that summary judgment principles should be applied) that there is no genuine issue for trial, based on the reasons set out above. The father's motion to change will be dismissed.
60It is unnecessary to explore the mother's second ground to dismiss the father's motion to change – the father's failure to comply with court orders. The court notes that the father provided considerably more disclosure during this proceeding. He was not fully compliant with the production orders, but that is not why his motion is being dismissed. The court would also not have dismissed his motion for failure to pay costs. Courts must be very careful in compromising a child's relationship with a parent due to costs considerations.
Part Nine – Motion to Prohibit Further Motions by the Father Without the Court's Permission
61The mother seeks an order prohibiting the father from bringing further motions to change without the court's prior permission. She also seeks an order that as a precondition to leave being granted, the father must be in compliance with all prior disclosure or costs orders.
62Subrule 14(21) of the Family Law Rules (the rules) reads:
NO MOTIONS WITHOUT COURT'S PERMISSION – If a party tries to delay the case or add to its costs or in any other way to abuse the court's process by making numerous motions without merit, the court may order the party not to make any other motions in the case without the court's permission.
63This provision applies to change motions by virtue of subrule 15(27) of the rules.
64This sub-rule has been applied in high conflict cases where significant litigation has taken place. See: Fish v. Leung, 2006 ONCJ 112 ; Geremia v. Herb (No. 5), [2008] O.J. No. 1716 (SCJ).
65An order of this nature is a serious restriction on a parent's access to the court and should be reserved for cases where there have been several motions brought without merit. It is designed to prevent an abuse of the court's process.
66The evidence does not support the order sought by the mother. This is the first motion to change brought by the father. His desire to see his children is understandable. It was not unreasonable for him to pursue this claim. That said, this court has stated that the father must show a longer period of stability and take specific steps before he can hope to establish a material change in circumstances. The mother should not have to deal with the cost and stress of further litigation until this process takes place. Accordingly, the father will be prohibited from bringing a further motion to change prior to January 1, 2016 without prior leave of the court.
Part Ten – Conclusion
67This decision should provide the father with a roadmap of what he needs to do to establish a material change in circumstances in any future motion to change. To summarize he should:
a) Engage in meaningful psychiatric treatment. The treating psychiatrist should have copies of the medical records filed in this case together with a copy of this decision.
b) Be compliant with professional treatment and recommended medications.
c) Provide documentary evidence (such as blood or urine screens, or hair-strand testing) that he is not abusing alcohol or drugs.
d) Demonstrate an ability to lead a stable life. This includes not having mental health episodes or involvement with the criminal justice system.
e) Obtain stable employment or go to school to upgrade his education.
f) Pay appropriate child support.
g) Demonstrate that he has developed some insight into the adverse impact his behaviour has had on the mother and the children.
68The court wishes the father well in taking these steps. However, it cautions him that making material changes in his own life does not necessarily mean that access will be restored. It is more complicated than that. The court will still need to assess if access is in the best interests of these children. The court would need to hear evidence about what impact the father's behaviour has had on the children and how contact with the father may affect them. The court will need to hear evidence about how the children are functioning and assess if contact with the father would benefit them or possibly destabilize them.
69If the father is able to take the steps described, counsel are encouraged to obtain this evidence about the children and explore the possibility of a therapeutic reintroduction of the father to the children in a physically and emotionally safe manner for them and the mother.
70A final order shall go on the following terms:
a) The father's motion to change is dismissed.
b) The father may not bring a motion to change this order prior to January 1, 2016 without prior leave of this court. Any motion for leave is to be by Form 14, with notice in accordance with the Family Law Rules to the mother, through her counsel.
c) If the mother is seeking costs of this motion she may make written submissions, by February 13, 2015. The father may make written reply by February 23, 2015. The submissions should not exceed three pages, not including any offer to settle or bill of costs.
71The court thanks counsel for the excellent quality of their presentation.
Justice S.B. Sherr
Released: February 2, 2015
